New role for veep: chief clemency adviser?

A forthcoming article in the Harvard Journal of Law and Policy argues that the federal pardon process ought to be restructured to make the vice president the president’s chief clemency adviser. Paul Larkin of the Heritage Foundation proposes that pardon recommendations ought to be made by an board chaired by the vice president located in the Executive Office of the President. This intriguing idea may appeal to the Trump Administration, particularly since the new vice president has had some experience with pardoning as governor of Indiana.

Here is the abstract of the article:

The need for reconsideration of the federal clemency process is a real one, and there is a consensus that the Justice Department should no longer play its traditional doorkeeper role. Using the vice president as the new chief presidential clemency adviser offers the president several unique benefits that no other individual can supply without having enjoyed a prior close personal relationship with the chief executive. Whoever is sworn into office at noon on January 20, 2017, as the nation’s 45th President should seriously consider using as his principal clemency adviser the person who was sworn into the vice presidency immediately beforehand. The president, clemency applicants, and the public might just benefit from that new arrangement.

Larkin joins a growing number of scholars calling for the removal of the pardon process from the Justice Department to the White House. The kind of board he recommends is similar to the ones that have operated effectively for years in Delaware and Pennsylvania, though in both states pursuant to constitutional directive.

It is true that in his four years as governor, Mike Pence has issued fewer pardons than his predecessors — only three since taking office in 2013. He has also recently come under fire for refusing to pardon a man whose conviction was vacated after he had spent 10 years in prison, instead directing the man back to court to establish his innocence. On the other hand, only a few months after taking office Governor Pence signed into law one of the most progressive pieces of collateral consequences relief legislation enacted in any state since the 1980s.

So there is no telling what might happen if, as Larkin recommends, the role of clemency adviser shifts from the Attorney General and becomes part of Vice President Pence’s portfolio in the Trump Administration.